Request for a preliminary ruling from the Administratīvā apgabaltiesa (Latvia) lodged on 2 February 2024 – AS Gaso and AS Conexus Baltic Grid v Sabiedrisko pakalpojumu regulēšanas komisija

(Case C-87/24, Gaso and Conexus Baltic Grid)

Language of the case: Latvian

Referring court

Administratīvā apgabaltiesa

Parties to the main proceedings

Applicant: AS Gaso, AS Conexus Baltic Grid

Defendant: Sabiedrisko pakalpojumu regulēšanas komisija (‘the regulatory authority’)

Questions referred

Does Article 41(8) of Directive 2009/73/EC ¹ preclude a national provision that does not impose an obligation on the regulatory authority, when calculating tariffs or establishing methodologies, to explain how they ensure that transmission and distribution system operators are granted an appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities?

Is it consistent with Article 41(8) of Directive 2009/73/EC to interpret a national provision as meaning that an appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities, is ensured when the tariff payments by users cover only the economically substantiated costs of public utilities and ensure a profit, albeit at a minimum level?

Is a national provision which, when fixing an ‘appropriate incentive, over both the short and long term’ and incentives to ‘foster market integration and security of supply and […] research activities’, does not provide for account to be taken of principles that are accepted in the financial sector when determining the weighted average rate of return on capital, principles which take into consideration comparable undertakings that operate in the free market, consistent with the objectives set out in Article 41(8) of Directive 2009/73/EC?

In interpreting the concepts of ‘appropriate return on investments’, within the meaning of Article 13 of Regulation [(EC) No 715/2009] ¹ , and of ‘incentives for investment’, under Article 41 of Directive 2009/73, must the regulatory authority be guided by the concept of the average rate of return on capital (weighted average cost of capital, ‘WACC’) accepted in the financial sector and by the methodology used to determine it?

If the answer to the above question is in the affirmative, may the regulatory authority legitimately depart from the methodology used in the financial sector when determining the average rate of return on capital and adjust that rate as it considers appropriate?

If the answer to the above question is in the affirmative, may the regulatory authority legitimately adjust the average rate of return on capital so that its calculation takes into account a size premium based on the borrowing costs of other companies in the Member State’s economy?

If the answer to the fourth question is in the affirmative, may the regulatory authority legitimately adjust the average rate of return on capital in such a way that it does not have to compensate natural gas transmission or storage system operators for the increase in inflation during the preceding tariff period?

If the answer to the fifth question is in the affirmative, and in a case where the system operator does not agree with the amount of the average rate of return on capital proposed by the regulatory authority or with the elements underpinning it, should the regulatory authority, when determining the average rate of return on capital (WACC), use an independent third party to assess the appropriate amount for that rate?

Is a procedure for fixing tariffs in which the average rate of return on capital is determined by the regulatory authority and in which the natural gas transmission or storage system operators are not entitled to adjust that calculation in accordance with the individual indicators of the system operator’s business contrary to the aims set out in Article 41(8) of Directive 2009/73/EC?

Must Article 1(b) of Regulation [(EC) No 715/2009], in relation to the second paragraph of that article, be interpreted as meaning that recitals 7 and 8 and Article 13(1) of the Regulation are applicable to natural gas storage facilities and to the tariffs fixed by the regulatory authority if access to liquid natural gas storage facilities is regulated?

____________

¹     Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ 2009 L 211, p. 94).

¹     Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ 2009 L 211, p. 36).